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PolitiFact Florida: Medical marijuana amendment has lenient 'condition' clause

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Published Jan. 6, 2014

If there's one issue sure to spark a debate in Florida, it's medical marijuana.

United for Care is in the midst of a petition campaign to place a medicinal cannabis bill on the November ballot. The campaign has until Feb. 1 to qualify, but Florida Attorney General Pam Bondi isn't waiting that long.

On Oct. 24, her office filed a challenge to the Florida Supreme Court, arguing that the summary of the amendment on the ballot is designed to mislead voters. The court heard arguments last month and has until April 1 to rule.

Among the claims in the brief is that the 74-word summary doesn't go far enough to explain the extent of how the amendment would affect state law.

"The proposal hides the fact that the Amendment would make Florida one of the most lenient medical-marijuana states, allowing use for limitless 'other conditions' specified by any physician," the brief reads.

"With no 'condition' off limits, physicians could authorize marijuana for anything, any time, to anyone, of any age," it continues. "But rather than tell voters of this extraordinary scope, the summary uses language to prey on voters' understandable sympathies for Florida's most vulnerable patients — those suffering 'debilitating diseases.' "

Is Florida's proposed amendment lenient compared with the rest of the country's medical marijuana laws?

Twenty states have medical marijuana laws, and all of them have at least a partial list of specific medical diagnoses that can be treated with cannabis. These diseases typically include cancer, AIDS, glaucoma, or wasting syndromes like cachexia, although the lists vary by state.

The Florida amendment spells out its covered diagnoses as cancer, glaucoma, AIDS, hepatitis C, ALS, Crohn's disease, Parkinson's disease and multiple sclerosis. But it also allows for "other conditions for which a physician believes that medical use of marijuana would likely outweigh the potential health risks for a patient." Any other use would have to fall under that rather open-ended description.

It's the "other conditions" that Bondi and others say is a major loophole.

Other state laws use words like "other conditions" to allow for diseases or symptoms not mentioned in their statutes. Usually, there is a process to petition a state board or other group to allow medical marijuana use for one of those conditions after it's approved by a doctor.

Florida's law would only require that a doctor give a written recommendation. (To abide by federal law, no state requires a prescription, only a recommendation.) Only two states, California and Massachusetts, have laws that allow patients to obtain the drug for an unlisted condition based solely on a doctor's recommendation, without the approval of a state board.

United for Care campaign manager Ben Pollara said the loose requirements for the approval process in Florida was by design. "Health care decisions should be made between a doctor and their patient, not by whether it is included or excluded on an arbitrary list drawn up by lawyers, politicians or bureaucrats," he told PolitiFact Florida.

Other states have slightly stricter guidelines for what constitutes a non-specified condition. Alaska, for example, has an approval process for any "debilitating medical condition" with symptoms such as pain, nausea or seizures. Montana gives leeway for severe pain with a second doctor's opinion. Vermont will let patients treat severe pain, severe nausea, or seizures if other efforts have failed — or if those conditions are caused by other treatments.

In regard to overall leniency, however, there is much more to consider than just what could be covered.

The Florida law would not, for instance, protect patients growing their own plants, which 15 states permit to some degree.

Instead, the Florida amendment outlines that the state Department of Health or some other designated agency must regulate a dispensary network, a requirement by 14 states.

Furthermore, the proposal does not contain wording on possession limits, which also vary by state. "Most allow 2 to 2.5 ounces, but some are as low as 1 ounce, and some are as high as 24 ounces," Marijuana Policy Project spokesman Dan Riffle said. "The Florida initiative leaves that up to the Department of Health to determine, and they'll probably say 1 to 2 ounces if this passes."

Riffle added that the amendment also does not carry any protections for housing or employment discrimination against patients or caregivers. One example he gives is how in Arizona, a licensed patient cannot be fired from a job for failing a drug test. The Florida law makes no mention of such instances.

Riffle said the Florida proposal overall "is a relatively average medical marijuana law," not as restrictive as places like Connecticut, Illinois or New Jersey, but not as liberal as California, Arizona or Massachusetts. But Bondi only mentions the vague language of conditions as it relates to obtaining the drug.

Overall, we rate the statement Mostly True.

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